. . . . TRIAL COURT NUMBER: 586939 

IN THE 

TEXAS COURT OF CRIMINAL APPEALS 

AUSTIN, TEXAS 

BIRSHAL MITCELL 

RELATOR 

vs. 

337TH JUDICIAL DISTRICT COURT 

HARRIS COUNTY, TEXAS 

RESPEINDE[l.JT 

PETITION FOR EXTRAORDINARY RELIEF 

RE: 

IDENTITIY OF PARTIES 

BIRSHAL MITCHELL 

TDCJ-CID #630503 

WILLAIM G. McCONNELL UNIT 

BEE COUNTY, BEEVILLE, TEXAS 

337TH JUDICIAL DISTRICT COURT 

HARRIS COUNTY, HOUSTON, TEXAS 

REAL PARTY IN INTEREST 

RECEIVED IN 

COURT OF CRIMINAL APPEALS 

APR 16 2015 

This document contains some 

pages that are of poor quality 

at the time of imaging. 

"EB" CLERK IN THE 337TH DISTRICT COURT 

P. 0. BOX 4651 

HOUSTON, TEXAS 77210-4651 
IN RE 

BIRSHAL MITCHELL 

Relator, 

IN THE 

TEXAS COURT OF CRIMINAL APPEALS 

AUSTIN, TEXAS 

§ 

§ 

§ NO: 

§ 

§ 

MOTION FOR LEAVE TO FILE 

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS: 

COMES NOW, BIRSHAL MITCHELL, Relator in the Above-Styled and Numbered Cause, 

and Respectfully presents this, his "Motion For Leave To File"(his enclosed copy 

of his~''Petition For Extraordinary Relief") pursuant to Tex.R.App.Prod.Roie 72, 

and ''Requests" that this Honorable Court grant him permission to proceed with 

the "Petition For Extraordinary Relief~ 

Submitted on this, /3 day of April, 201 5. 

Respectfully Submitted, 

:b.~~~- Birsha~M~ator Pro Se 

TDCJ-CID #630503 

William G. McConnell Unit 

3001 South Emily Drive 

Beeville, Texas 78102 

Page 1 of 1 
INDENTIFICATION OF PARTIES 

RESPONDENT 

337TH JUDICAL DISTRICT COURT 

HARRIS COUNTY, HOUSTON, TEXAS 

PRESIDING JUDGE . 

. RESPONDENT 

"EB" CLERK IN THE 337TH DISTRICT COURT 

.RELAToR 

BIRSHAL MITCHELL, TDCJ-CID #63050'3 

CURRENTLY INCARCERATED IN THE 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE -

CORRECTIONS INSTITUTIONS DIVISION 

WILLIAM G. McCONNELL UNIT, BEEVILLE, TEXAS 

1IABLE OF CONTENTS 

Identification of Parties----------------------------------------~--~----ii 

Table of Contents _________________________________________________________ ii 

Table of Authorities----------------~------------------------------------ii 

State of the Case---------------------------------------------------------

Mandamus Relief Appropriate------------------------------------------------

Mandamus Jurisdiction--~-------------------------------------------------

Ministerial Act/Clear Right to Relief Requirement. ________________________ __ 

1 

2 

3 

3 

Conclusion----------------------------------------------------------------- 3 

Prayer--------------------------------------------------------------------·· 4 

Verification 4 

TABLE OF AUTHORITIES 

In re Mata, 212 SW3d 597(Te~.App.-Austin 2006} 2 

In re Hewlett Parkard, 212 SW3d 356(Tex.App.-Austin 2006) ___________________ ,3 

Dickens v. Second Ct. App. 727 SW2d 542, 549 .3 

State ex rel Hill v. Ct. of App. 5th District, 34 SW3d 924, 927. 3 

Stotts v. Wisser, 894 SW2d 366, 367 3 

Runtion v. Harmon, 827 SW2d 945, 947 .3 

State ex rel Vance v. Routt, 571 SW2d 903, 907. 3 

ii 
IN RE 

IN THE 

TEXAS COURT OF CRIMINAL APPEALS 

AUSTIN, TEXAS 

NO: __________________ __ 

BIRSHAL MITCHELL 

Relator, 

§ 

§ 

§ 

§ 

§ 

PETITION FOR EXTRAORDINARY RELIEF 

.RE: 

(1) MANDAMUS RELIEF TO COMPEL THE TRIAL COURT TO PROPERLY HEAR AND 

RULE ON RELATOR'S MOTION/REQUEST FOR 11 NUNC PRO TUNC 11 and/or 

(2) AN INQUIRY INTO 11 WHY 11 THE COURT CLERK OF ·HJE 337TH JUDICIAL 

DISTRICT COURT MADE THE FINAL DESPOSITION OF THE MATTER IN 

FRONT OF THE COURT. 

TO THE HONORABLES JUSTICES OF THE COURT OF CRIMINAL APPEALS: 

COMES NOW, BIRSHAL MITCHELL, Relator P~o Se, in the Above-Styled and 

Number.ed Cause, and Respectfully presents this, Relator's 11 PETITION FOR 

EXTRAORDINARY RELIEF 11 seeking to institute an original proceeding in this 

Honorable Court for an issuance of a 11 Writ Of Mandamus 11 and in support of 

said Petition, Relator hopes to show the Court the following: 

STATEMENT 0~ THE CASE 

Relator was ar~e~ted and convicted for the Offense of Aggravated Robbery 

in 1991, and the 337th Judicial District Court Judge gave relator Ten (10) 

years 11 Deferred Adjudiciated Probation, 11 this probation lasted until Relator 

failed to uphold his part of the probation by failing to report, and comply 

by the roles established by the Court. 

Relator was revoked, and given a Twenty (20) year sentence, and was remanded 

to the Texas Department of Criminal Justice - Institutional Division, this 

sentence began upon the Court revoking Relator's probatioonin 1998, and TDC 

Page 1 of 4 
received Relator in 1999, having served 421 days,(1 yr., 1mo., 26:days) in 

the county jail. Relator was in the custody of TDC for 4 years, 3 months 

and 18 days before being paroled on October 20th 2003, having completed a 

total of 5 years, 5 months and 14 days of the Twenty (20) year sentence. 

On or about.October 20th 2011, Relator was charged with another offense 

and ·Relator's parole was revoked. Relator had completed 8 years and 6 days 

on the street totals his Twenty (20) year sentence, combined with what he had 

completed flat, Relator had done 17 years, 9 months, and 25 days. 

Relator has been denied his street time by TDC & the BPP due t6 their 

retroactive application of Government Cod~ §§508.149(a) & 508.283, both of 

these Sections were "Enacted" on September 1st, 1997, the fact that Relator 

violated his probation in 1998, came to TDC in 1999, the original offense date 

was January 1991, so the law in effect at the time of tQe offense is in fact 

the law that governs the sentence. 

Relator filed with the trial Court on Ma~ch 3rd 2015 a Motion For Judgment 

Nunc Pro Tunc, hoping that the sentencing Court would order TDC & BPP to correct the sentence to reflect the B. plus ,years that Relator did on the stree 

under direct supervision of the Parole Commission. 

On April 2nd 2015~ the Motion sent to the Court was Denied, but it is 

clear~y apparent that it wasn't the Court that denied it, but in fact the Clerk I 

in the 337th Court itself,(See Attached Exhibit "A"). It appears from the 

I 

I Exhibit attached, that ''EB" Clerk in the 337 District Court signed off on the 

document instead of the Judge of the Court. 

MANDAMUS RELIEF APPROPRIATE 

I 

Mandamus relief is available only if a trial court clearly abuses it's 

discretion, and Relator can show that he has no adequate lremedy by appeal. 

In re MATA. 212 SW3d 597(Tex.Apo.-Austin 2006); InrreLEWiN 149 SW3d 727(Tex. 

Page 2 of 4 
.. App. -Austin 2004) ; In re HEWLETT PARKARD 212 SW3d 356 (Tex. App >Austin 2006) . 

In the instant case Relator shows by the attached exhibit that not o~ly 

did the trial fail ~o sign off on, and enter an order of denial, the Court 

allowed the Court's Clerk to do it, thus making a Writ of Mandamus necessary 

to correct the defect of the Court's "non-action" in Relator's case. 

MANDAMUS JURISDICTION 

Mandamus is an Extraordinary Writ and it's issuance isn't a matter of Law 

or Right, but rests in the sound discretion of the Court. DICKENS v~ SECOND CT. 

OF APPEALS, 727 SW2d 542, .549. To be entitled to Mandamus Relief, Relator ~ust 

conclusively establish two requirements; 1) There must be no other adequate 

remedy; and 2) Under the relevant facts and law, the act sought to be compelled 

is purely ministerial. See STATE ex rel. HILLV. CT~ OF APPEALS FOR THE 5THDISTRICT. 34 SW3d 924; 927; STOTTS V. WISSER, 894 SW2d 366, 367; RUNTION v~ 

HARMON, 827 SW2d 945, 947; STATE ex rel. VANCE if. ROUTT, 571 SW2d 903, 907. 

Based upon legal requirements Relator will show. 

MINISTERIAL ACT/CLEA~ RIGHT TO RELIEF REQUIREMENt 

Relator submits that based on the attached Exhibit, Relator hopes that he 

is entitled. to some relief by this Court. The relief sought herein is simply 

an order to the 337th Judicial District Court to review the Motion Relator has 

before it, and rule on it as Relator had sought in the first place, instead of 

the Court allowing it's in Court Clerk to sign off on, as the Exhibit clearly 

indicates. 

CONCLUSION 

Relator has tried to present to this Court the facts of his case, and 

I 

claim. All Relator is trying to seek is the proper procedure of the Court to 

hear a Motion, Rule on the Motion, and Enter an Order on the Motion, signed by 

the Presiding Judge. Relator relies solely on this Court for relief sought, 

and a correction of the "Clerk's" & "Court's" abuse of discretion. 

Page 3 of 4 
. ' 

PRAYER 

WHEREFORE, PREMISE CONSIDERED, Birshal Mitchell, Relator in the AboveEntitled and Numbered Cause, Respectfully Prays that this Honorable Court will 

"GRANT" such relief to which Relator might be entitled. So Moved and Prayed 

that this "Petition For Extraordinary Relief" be "GRANTED'! Relator further 

Prays for such relief, General or Special at Law or Equity, which this Honorable 

Court might deem Just, Proper, and Eq~itable. 

Executed on this, /~ day of April, 2015. 

Respectfully Submitted, 

(f~~ BirSh81Mithell,R8l8tOI'PI'O 

TDCJ-CID #630503 

William G. McConnell Unit 

3001 South Emily Drive 

Beeville, Texas 78102 

VERIFICATION 

I, Birshal Mitchell, TDCJ-CID #630503, being incarcerated at the William 

G. McConnell Unit, Bee County, Beeville, Texas, declare under penalty of perjury 

that I am the Relator in the above and foregoing document. I have read and 

understand said document, and the Factual allegations of same and find that 

they are True and Correct to the best of my knowledge. 

Executed on this,/~ day od April, 2015. 

Birshal Mltchell, Relator Pro Se 

TDCJ-CID # 630503 

Page 4 of 4 
j , 

BIRSHAL MITCHELL 

TDC NO. 630503 

MCCONNEL UNIT 

30018. EMILY DR. 

BEEVILE TEXAS 78102 

CHRIS DANIEL 

HARRIS COUNTY DISTRICT CLERK 

Memonmdur.;. :·esponse t~ correspondence.re(,',eived: 03/2~/.~!tl~ 

Re: Cause No(s) 586939. 

Dear BIRSHAL MITCHELL, 

Direct Dial Line: 

~ Your motion/request NUNC PRO TUNC was filed with the District Clerk and on 337 · 

the Court: 

D Took no action 

l [gl Denied your Motion/Request D Granted your motion/request 

D Took action D Advised atton.ey of record D Other 

D Other: 

P.O. Box 465 I • HOUSTON, TEXAS 772 I 0-465 I • (7 I 3) 755-5749